Ron Barber Election Lawsuit

8/10/2019 Ron Barber Election Lawsuit

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JS 44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as pr

y local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of inhe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

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1 U.S. Government 3 Federal Question PTF DEF PTF DPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated andPrincipal Place 5

Defendant(Indicate Citizenship of Parties in Item III)

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130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking

140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC 881 450 Commerce

150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation& Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influence

151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizatio

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160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge

190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC 3410

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210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Mat

220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation A

230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRSThird Party 895 Freedom of Informa 240 Torts to Land Accommodations 530 General 26 USC 7609 Act

245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determ 290 All Other Real Property 445 Amer. w/Disabilities - 540 Mandamus & Other 462 Naturalization Application Under Equal Access

Employment 550 Civil Rights 463 Habeas Corpus - to Justice

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Other 465 Other Immigration State Statutes

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V. ORIGINTransferred fromanother district(specify)

Appeal to DJudge fromMagistrateJudgment

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1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 6 MultidistrictLitigation

7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

n Barber for Congress; et al.,

Pima

niel C. Barr, Perkins Coie LLP, 2901 N. Central Avenue, Phoenix,zona, 85012, 602-351-8014

Ken Bennett, in his official capacity as Secretary of State for theState of Arizona, et al.

Maricopa

42 U.S.C. 1983 and 1988, 52 U.S.C. 21082(a)(4), 28 U.S.C. 2201 and 2202

Seeking injunctive relief to order defendants to count votes that were properly cast in the 2014 general electio

11/24/2014 s/ Daniel C. Barr


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Daniel C. Barr (Bar No. 010149)PERKINS COIE LLP2901 North Central Avenue, Suite 2000Phoenix, Arizona 85012-2788Telephone: 602.351.8000Facsimile: 602.648.7000Email: [email protected]

Kevin J. Hamilton (WSBA No. 15648)Pro Hac Vice Application To Be FiledPERKINS COIE LLP1201 Third Avenue, Suite 4900Seattle, WA 98101-3099Telephone: 206.359.8000Facsimile: 206.359.9000Email: [email protected]

Attorneys for Plaintiffs Ron Barber for Congress,Lea Goodwine-Cesarec, Laura Alessandra

Breckenridge, and Josh Adam Cohen

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Ron Barber for Congress; Lea Goodwine-

Cesarec, Laura Alessandra Breckenridge,Josh Adam Cohen,

Plaintiffs,

v.

Ken Bennett, in his official capacity as

Secretary of State of the State of Arizona; the

Pima County Board of Supervisors, a body

politic; Ally Miller, in her official capacity as a

member of the Pima County Board of

Supervisors; Ramn Valadez, in his official

capacity as a member of the Pima County

Board of Supervisors; Sharon Bronson, in herofficial capacity as a member of the Pima

County Board of Supervisors; Ray Carroll, in

his official capacity as a member of the Pima

County Board of Supervisors; Richard Elas, in


County Board of Supervisors; the Cochise

County Board of Supervisors, a body politic;

No.

VERIFIED COMPLAINT FORINJUNCTIVE AND

DECLARATORY RELIEF


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Patrick Call, in his official capacity as a

member of the Cochise County Board of

Supervisors; Ann English, in her official

capacity as a member of the Cochise County

Board of Supervisors; and Richard Searle, in

his official capacity as a member of theCochise County Board of Supervisors.

Defendants.

Plaintiffs Ron Barber for Congress, Lea Goodwine-Cesarec, Laura Alessandra

Breckenridge, and Josh Adam Cohen, (collectively, Plaintiffs) file this Complaint

against Defendants Ken Bennett, the Pima County Board of Supervisors, the members of

the Pima County Board of Supervisors, in their official capacities (Ally Miller, Ramn

Valadez, Sharon Bronson, Ray Carroll, and Richard Elas), the Cochise County Board of

Supervisors, and the members of the Cochise County Board of Supervisors, in their

official capacities (Patrick Call, Ann English, and Richard Searle) (collectively

Defendants), and allege as follows:

INTRODUCTION

1.

As the Supreme Court has recognized:

No right is more precious in a free country than that of havinga voice in the election of those who make the laws underwhich, as good citizens, we must live. Other rights, even themost basic, are illusory if the right to vote is undermined.

Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535 (1964). The right to vote is

never more precious than when the initial tally of votes in an election manifests a razor

thin margin separating the two candidates for office. That is precisely the case in

Arizonas second congressional district today. The initial returns for the 2014 election for

United States House of Representatives in Arizonas second congressional district have

Martha McSally leading Ron Barber by the barest of margins161 votes, which is less

than one-tenth of one percent of the votes cast in the election.


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2. This case concerns the ongoing disenfranchisement of at least 133 eligible

Arizona voters who cast ballots in the November 2014 General Election for Arizonas

second congressional district. These Arizona voters were lawfully registered to vote, and

cast their ballots in accordance with state or federal law and, in many cases, as specifically

directed by Arizona election officials. Not only do their votes remain uncounted, but the

Pima County and Cochise County Boards of Supervisors have expressly refused to

investigate their circumstances or to count their votes. Under federal and state law, these

ballots must be counted with respect to all races for which such voters are eligible to vote.

3. Indeed, in the 2014 election for the second congressional district, Arizona

has failed to utilize election procedures that are consistent with its obligation to avoid

arbitrary and disparate treatment of the members of its electorate.Bush v. Gore, 531 U.S

98, 105, 121 S. Ct. 525 (2000). To the contrary, arbitrary and disparate treatment of voters

has been evident in the 2014 General Election.

4. Perhaps most notably, although Arizona law does not impose any deadline

by which a voter must present evidence that election officials have improperly rejected his

or her ballot due to a purported signature mismatch, officials in Pima County and

Cochise County arbitrarily imposed their own deadlines. And those arbitrary deadlines are

entirely different. Pima County refused to allow voters to cure signature mismatches after

noon on November 8, and then changed the deadline to close of business on November 9

Cochise County outright refused to provide voters with any opportunity to resolve

supposed mismatchesafter the polls closed on Election Day. Treating similarly-situated

voters differently based simply on where they reside is anathema to a fair election.

5. To prevent the Secretary of State, and the local election officials he

oversees, from refusing to count ballots lawfully cast by Arizona citizens, Plaintiffs seek a

temporary restraining order and preliminary injunction that (1) enjoins Defendants and all

those acting in concert with them or under their direction from certifying the results of the

2014 General Election or the need for a recount in the election for United States House of

Representatives in Arizonas second congressional district until the contested ballots have


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PARTIES

9. Plaintiff Ron Barber for Congress is the principal campaign committee of

Ron Barber, an Arizona citizen and resident of the second congressional district.

Congressman Barber is the incumbent, and currently represents the second congressional

district in the United States House of Representatives. Congressman Ron Barber was a

candidate on the November 4, 2014 General Election ballot for the United States House of

Representatives for the second congressional district.

10. Plaintiff Lea L. Goodwine-Cesarec is a resident of Pima County. She is an

eligible, registered voter. Ms. Goodwine-Cesarec cast a ballot in the November 4, 2014

General Election that has been rejected and not counted by the Pima County Board of

Supervisors.

11. Laura A. Breckenridge is a resident of Pima County. She is an eligible

registered voter. Ms. Breckenridge cast a ballot in the November 4, 2014 General Election

that has been rejected and not counted by the Pima County Board of Supervisors.

12. Plaintiff Josh A. Cohen is a resident of Pima County. He is an eligible,

registered voter. Mr. Cohen cast a ballot in the November 4, 2014 General Election that

has been rejected and not counted by the Pima County Board of Supervisors.13. Defendant Ken Bennett is sued in his official capacity as Secretary of State

of the State of Arizona. Defendant Bennett is a person within the meaning of 42 U.S.C

1983 and was acting under color of state law at all times relevant to this complaint. As

Secretary of State, Defendant Bennett serves as the chief elections officer of the State

Defendant Bennetts duties consist, among of other things, of issuing a certificate of

election to the candidate receiving the highest number of votes cast pursuant to state law.

See, e.g., A.R.S. 41-121(A)(6),16-650.

14. The Pima County Board of Supervisors is the duly elected governing body

of Pima County, a body politic, organized and existing under the laws of the State of

Arizona. Under Arizona law, the Pima County Board of Supervisors must meet to canvass

the returns and report those returns to the Secretary of State.


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administration of elections, including the canvassing of return and other aspects of

elections and voting procedures in Pima County.

20. The Cochise County Board of Supervisors is the duly elected governing

body of Cochise County, a body politic, organized and existing under the laws of the State

of Arizona. Under Arizona law, the Cochise County Board of Supervisors must meet to

canvass the returns and report those returns to the Secretary of State.

21. Defendant Patrick Call is sued in his official capacity as a member of the

Cochise County Board of Supervisors. Defendant Call is a person within the meaning of

42 U.S.C. 1983 and was acting under color of state law at all times relevant to this

complaint. As a member of the Board, Defendant Call is responsible for the


elections and voting procedures in Cochise County.

22. Defendant Ann English is sued in her official capacity as a member of the

Cochise County Board of Supervisors. Defendant English is a person within the meaning

of 42 U.S.C. 1983 and was acting under color of state law at all times relevant to this

complaint. As a member of the Board, Defendant English is responsible for the



23. Defendant Richard Searle is sued in his official capacity as a member of the

Cochise County Board of Supervisors. Defendant Searle is a person within the meaning of

42 U.S.C. 1983 and was acting under color of state law at all times relevant to this

complaint. As a member of the Board, Defendant Searle is responsible for the



JURISDICTION AND VENUE

24. Plaintiffs bring this action under 42 U.S.C. 1983 and 1988 to redress the

deprivation under color of state law of rights secured by the United States Constitution.


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25. This Court has original jurisdiction over the subject matter of this action

pursuant to 28 U.S.C. 1331 and 1343 because the matters in controversy arise under

the Constitution and laws of the United States.

26. This Court has supplemental jurisdiction over Plaintiffs state law claim

(Fourth and Sixth Claims for Relief) pursuant to 28 U.S.C. 1367(a).

27. Venue is proper in this Court under 28 U.S.C. 1391(b) because the events

that gave rise to Plaintiffs claims took place within the District of Arizona.

28. This Court has the authority to enter a declaratory judgment and to provide

preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federa

Rules of Civil Procedure and 28 U.S.C. 2201 and 2202.

29.

This Court has personal jurisdiction over Defendants.

FACTUAL ALLEGATIONS

A. The November 4, 2014 General Election

30. Arizona held its General Election on November 4, 2014. One of the offices

on the ballot was the position of representative for Arizonas second congressional

district.

31.

The second congressional district is comprised of Cochise County and a

portion of Pima County. The Democratic candidate is Congressman Ron Barber. The

Republican candidate is Martha McSally.

B. Overview of The Post-Election Canvass Process

32. Subsequent to Election Day, local election officials conduct a canvassing

process to determine the total number of votes properly cast in the election for each

candidate. No later than 20 days (i.e., November 24, 2014) after the general election, each

countys Board of Supervisors must meet to canvass the returns and report those returns to

the Secretary of State.

33. On or before the fourth Monday following the general election (December

1, 2014), the Secretary of State must, in the presence of the Governor and Attorney

General, canvass the returns and immediately certify the result to the Governor. If the


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Secretary of State does not receive the official canvass from any county by the fourth

Monday following the general election, the Secretary of State may postpone its canvass.

The Secretary of State cannot postpone the canvass more than 30 days from Election Day.

34. After completing the canvass, the Secretary of State declares elected the

person receiving the highest number of votes cast for each office and delivers a signed

sealed certificate of election to each prevailing candidate. A.R.S. 16-650.

35. As of the date this Complaint is filed, local election officials have just

completed the process of canvassing the election returns. During the canvassing process,

Plaintiffs learned that election officials have wrongfully rejected a substantial number of

early and provisional ballots.

C.

Overview of Arizonas Early Voting System

36. Arizona maintains an early voting system wherein early voters may either

vote in person at an early voting station or vote by mail.

37. If a voter is in possession of an early ballot but insists on voting in person on

Election Day, he or she must be allowed to do so by provisional ballot upon providing

acceptable identification. See A.R.S. 16-579(B). So long as the voter has not already

cast the early ballot, he or she is allowed to vote by provisional ballot.Id.

38. Voters who elect to vote early by mail mark the ballot, enclose and seal it,

execute the affidavit provided on the envelope. See id. 16-547. The voter may return the

ballot by mail to the County Recorder in the envelope provided or deliver it to any polling

place in the voters county of residence.Id.

39. Early ballots are evaluated by the Early Election Board, which is appointed

by the county Board of Supervisors. See id. 16-547. The Early Election Board may

reject an early ballot for the following reasons: (1) the Board determines that the voters

early ballot affidavit signature does not match the signature on file, (2) the affidavit is

determined to be insufficient, or (3) the person who voted is not an elector. See Secretary

of States Election Procedures Manual (the Manual), at 167.


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40. If the Board determines that signatures do not match, it rejects the ballot

unless it receives and accepts an explanation from the voter that he or she did vote the

ballot and as to why the signatures do not match.Id.It is important to note that Arizona

law does not impose any deadline by which a voter must provide the requisite explanation

D.

Overview of Arizonas Provisional Ballot System

41. Under Arizona law, a person claiming the right to vote, but who is not

allowed to vote by poll workers, must be allowed to mark a provisional ballot if any of the

following circumstances apply: (1) the voter has not provided sufficient identification at

the poll; (2) the voters name does not appear on the signature roster or inactive list and

the voter has not moved; (3) the voter has moved; (4) the voter was issued an early ballot;

(5) the voter changed his or her name; or (6) the voter is challenged at the polling place

See A.R.S. 16-584.

42. At the time of voting a provisional ballot, the voter signs an affirmation on

the ballot envelope stating that the information is correct, that he or she resides in the

precinct and is eligible to vote in the election, and that he or she has not previously voted

in the election. See A.R.S. 16-584; see also Manual at 151. The voter or poll worker

completes a provisional ballot form, which both sign. See Manual at 152. The form is

attached to the provisional ballot envelope, which the voter returns to the appropriate

election official. Id. The voter receives a provisional voter receipt with information on

how to contact the County Recorder to verify the status of the provisional ballot. Id.The

voter is then entered on the provisional ballots page at the back of the signature roster or a

separate provisional roster.Id.

43. The County Recorder must verify all provisional ballots for proper

registration within 10 calendar days after the general election. See A.R.S. 16-584. The

provisional ballot[s] shall be counted if (1) the registration of the voter is verified and

the voter is eligible to vote in the precinct, (2) the voters signature does not appear on any

on any other signature roster for that election, and (3) the voter did not vote early or vote

on Election Day. Manual at 185. The affidavit on a provisional ballot envelope is


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sufficient if the voter signs it, and if the signature matches the signature on the voters

registration. See id. at 182.

44. If the voter has moved within the precinct, and thus his or her name is on the

voter register but the address on the identification does not match the signature roster, the

voter is given a provisional ballot. A.R.S. 16-135. If the voter has moved to a different

residence within the county but outside the precinct, the voter must be directed to the

polling place for the new address.Id. 16-122, 16-583.

45. Election officials must direct voters to the proper polling place because

A.R.S. 16-584 prevents election officials from counting a provisional ballot if it is cast

outside the voters own precinct, including votes for statewide offices. For the reasons

stated below, this statute as applied in this circumstance is unconstitutional.

46. With the limited exception of provisional ballots rejected due to purportedly

inadequate registration and identification, Arizona maintains no system or scheme under

which provisional voters whose ballots are rejected may provide information to election

officials to prove that their ballots were, in fact, properly cast.

E. Election Officials Have Wrongfully Rejected a Substantial Number ofEarly and Provisional Ballots

47. It has become apparent that local election officials in the second

congressional district improperly rejected some properly-cast ballots and gave voters

incorrect information that prevented them from exercising their right to vote. The errors

Plaintiffs have identified fall into several different categories. More than 130 voters in the

second congressional district, including Plaintiffs Goodwine-Cesarec, Breckenridge, and

Cohen had their ballots improperly rejected for one or more of the reasons listed below. In

many cases, it is clear that voters who unquestionably complied with state law were

disenfranchised through simple mistakes by government officials. In other cases, election

officials have arbitrarily refused to allow voters to submit evidence verifying that their

ballots were properly cast. In still other cases, voters were disenfranchised because


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election workers provided inaccurate information that prevented voters, on Election Day,

from casting ballots in full compliance with Arizona state law.

1. Voters Who Moved Within Pima County And Nonetheless HadTheir Provisional Ballot Rejected

48. Election officials erroneously rejected the provisional ballots of certain

voters who had moved within Pima County but had not updated their residential address

in their voter registration records prior to Election Day.

49. Arizona law is clear that [a]n elector who moves from the address at which

he is registered to another address within the same county and who fails to notify the

county recorder of the change of address before the date of an election shall be permitted

to correct the voter registration records at the appropriate polling place for the voters new

address, A.R.S. 16-135(B); that after presenting identification and affirming the new

residence address in writing, the voter shall be permitted to vote a provisional ballot, id

and that if the voters signature does not appear on the signature roster for that election in

the precinct in which the voter was listed (i.e., where the voter previously resided) and

there is no record of the voter having voted early for that election, the provisional ballot

shall be counted, id. 16-135(D).

50. Voters who moved within Pima County and cast provisional ballots at their

polling location fully complied with the requirements of Arizona law.

51. For example, prior to Election Day, Suzanne E. Pasch moved within Tucson

prior to Election Day, and was directed by the County Recorders Office to the polling

place for her new address. The poll worker instructed her to vote a provisional ballot

Ms. Paschs provisional ballot was rejected.

52. The ballots of at least three voters were rejected in these circumstances.


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2. Voters Who Signed Both Their Registration Form and TheirBallot Affidavit And Nonetheless Had Their Ballot Rejected Dueto a Purported Signature Mismatch

53. Election officials also rejected a number of ballots cast by early and/or

provisional voters because of their erroneous determination that the voters signature on

the ballot affidavit did not match the signature on the voters registration form.

54. Upon learning that their ballot had been rejected due to a purported

signature mismatch, these voters promptly contacted local election officials to validate

their signatures. Despite these voters providing sworn testimony that they had signed both

the ballot affidavit and the registration form, election officials have refused to count these

ballots.

55.

For example, Plaintiff Breckenridge voted an early ballot that was rejected

because of a purported signature mismatch. Ms. Breckenridge signed both the ballot

affidavit and the registration form. Upon learning that her ballot had been rejected in

error, she contacted election officials to validate her signature. Nonetheless, her ballot has

not been counted.

56. The ballots of at least 27 voters were rejected in similar circumstances.

57.

Voters who signed both their voter registration form and their early orprovisional ballot affidavit fully complied with the requirements of Arizona law.

58. Defendants fail to provide sufficient training and employ sufficiently clear

and uniform standards to ensure that election workers treat voters equally in the signature

match process. The result of these discretionary, subjective determinations made by

individuals untrained in handwriting analysis is that some voters who signed both their

voter registration form and their ballot affidavit had their voters counted, whereas others

who did the same had their ballot rejected.

3. Unsigned Early and Provisional Ballots

59. As set out above, Arizona allows election officials who have identified a

purported signature mismatch to accept an explanation from the voter that he or she did

vote the ballot and as to why the signatures do not match. Arizona has not adopted a


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similar procedure to allow voters who inadvertently failed to sign their early or

provisional ballot affidavit to present evidence to election officials that they did, in fact

vote the ballot. Such voters have no recourse under state law.

60. Until approximately the Thursday before Election Day, in at least some

instances, Pima County mailed back ballots to early voters who failed to sign their ballot

affidavit to provide an opportunity for such voters to correct the error. Thereafter, Pima

County refused to provide a similar opportunity (although it did provide a continuing

opportunity to cure signature mismatch ballots). Because voters can return early ballots

up to 7:00 p.m. on Election Day, A.R.S. 16-548, this means that some early voters who

failed to sign their ballot affidavit were given an opportunity to cure the oversight; others

were not. Cochise County, by contrast, called at least some such voters prior to Election

Day to inform them of the oversight and/or sent an affidavit for the voters to return by

Election Day. It provided no similar opportunity to early voters who returned early ballots

shortly before Election Day, and no opportunity at all after Election Day.

61. Pima County and Cochise County have informed the Ron Barber for

Congress campaign that some early and provisional ballots were rejected because the

ballot affidavit was not signed.

62. In at least some instances, voters casting unsigned provisional ballots were

expressly informed by poll workers that their votes would be counted. For example, Elle

Grace Troutman, who has been registered to vote in Arizona since 2000, legally changed

her name in September 2014 but received a mail-in ballot that had her previous name

associated with it. On Election Day, Ms. Troutman went to the polls and was directed to

fill out a provisional ballot. After she filled out the ballot, the poll worker looked over the

ballot, said that things appeared to be in order, and indicated that Ms. Troutmans

provisional ballot would be counted. The poll worker did not point out to her that

Ms. Troutman had not signed the provisional ballot. Her vote was not counted.


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63. The Pima County and Cochise County Board of Supervisors have refused to

provide voters who inadvertently failed to sign their ballot affidavits with an opportunity

to cure this oversight. The ballots of 16 voters were rejected in these circumstances.

4.

Failure By Election Officials to Direct Voters Who Had MovedTo the Proper Precinct

64. Election officials in Pima County and Cochise County owe a mandatory

statutory duty to direct voters who have moved to a different residence within the county

but outside the precinct at which they appear on Election Day to the polling place for the

new address. In numerous cases on Election Day, instead of complying with their

mandatory statutory duty, such election officials instead mistakenly instructed such voters

to cast a provisional ballot, which was then rejected. Such voters were disenfranchised

due to election official error or oversight.

65. For example, in January 2014, Plaintiff Cohen moved and had the address

on his drivers license changed. He did not know that he also needed to change his address

for purposes of his voter registration. On Election Day, Mr. Cohen went to the polling

location for his previous address.He informed the poll worker that he had moved, and the

poll worker instructed him to vote a provisional ballot. Mr. Cohen was assured that his

vote would be counted; it was not.

66. Likewise, Plaintiff Goodwine-Cesarec moved more than a month before

Election Day, and called the registrar to update her voting address. The registrar assured

her that she could change her voting address by phone and did not need to sign any forms

to do so. When she arrived at the polls on Election Day, she was informed that there was

no record of her change of address. Rather than directing her to another polling place, poll

workers directed her to cast a provisional ballot and told her that they expected the vote

would be counted; it was not.

67. The ballots of at least 31 voters were rejected in similar circumstances. The

Pima County and Cochise County Boards of Supervisors have refused to include these

ballots in the certification of the 2014 General Election.


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5. Misleading or Erroneous Statements by Election Officialsregarding Voting in Proper Precinct

68. In numerous instances, eligible, registered voters who inadvertently went to

the wrong polling place on Election Day were not directed to the proper polling place or

informed that they would not have their votes counted unless they did so. Rather, election

officials assured such voters that they could cast provisional ballots, that such ballots

would be counted, and that they need not travel to another polling place. In some cases,

election officials actively discouraged voters from going to the proper precinct to vote.

The provisional ballots cast by these voters were then rejected. Such voters were

disenfranchised due to election official error or oversight.

69.

For example, Michelle Rankin, who had previously received but not voted

an early ballot, went to the wrong precinct on Election Day. When she was realized she

had gone to the wrong precinct, she told a poll worker that she would return home to get

and return her early ballot. The poll worker told her that there was no need for her to do so

and that her provisional ballot would count as long as she was registered. Ms. Rankins

provisional vote was rejected.

70.

The ballots of at least 11 voters were rejected in these circumstances. The



6. Voters Who Were Not Told They Were In the Wrong Precinct

71. In other instances, eligible, registered voters inadvertently went to the

wrong polling place on Election Day and were not instructed to go to the proper polling

location or that their votes would not count if they did not do so. Such voters were

completely disenfranchised even though they were qualified to vote for most of the

elections on their ballot.

72. The ballots of at least 45 voters were rejected in these circumstances. The




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F. Election Officials Have Refused to Correct These Errors

73. Each countys Board of Supervisors must meet to canvass the returns and

report those returns to the Secretary of State no later than 20 days after the election.

A.R.S. 16-642. This year, the 20th day from the election is November 24, 2014.

74. In 2012, the Pima County Board of Supervisors canvassed the returns on the

last possible day. This year, without explanation or justification and despite the narrow

margin separating the candidates, the Board accelerated the canvassing meeting by almost

a full week, to November 18, 2014.

75. On Tuesday, November 18, 2014, the Ron Barber for Congress campaign

notified the Pima County Board of Supervisors of the categories of errors outlined above

submitted sworn declarations documenting such errors, and requested that the Board defer

its certification, investigate these issues, correct any errors and count the ballots that had

been improperly rejected. The Board refused to delay the canvassing to either allow the

Ron Barber for Congress campaign to conduct further investigation into the scope of these

errors or to itself conduct an investigation. Instead, that same day, the Pima County Board

of Supervisors voted to approve the election results for Pima County without asking the

Recorder for any explanation, addressing any of the errors identified by the Ron Barberfor Congress campaign or including any of the ballots in question in the count.

76. On Wednesday, November 19, the Ron Barber for Congress campaign sent

a letter to the Cochise County Board of Supervisors that enclosed sworn declarations from

voters documenting similar errors and requesting that the Board correct these errors and

count the ballots. The Board refused to delay the canvassing either to allow the Ron

Barber for Congress campaign to conduct further investigation into the scope of these

errors or to itself conduct an investigation. Instead, on November 20, the Board voted to

approve the election results for Cochise County without addressing any of the errors

identified by the Ron Barber for Congress campaign or including any of the ballots in

question in the count.


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77. On Friday, November 21, the Ron Barber for Congress campaign sent a

letter to the Secretary of State that enclosed sworn declarations from voters documenting

similar errors and requesting that the Secretary take steps to review these declarations and

either direct the Pima and Cochise County Boards of Directors to investigate, count these

ballots, and amend their certification, or, alternatively, to conduct that investigation

directly as part of the state canvassing and certification process. As of this date, the

Secretary of State has not responded to this request.

FIRST CLAIM FOR RELIEF

Equal Protection

U.S. Const. Amend. XIV, 42 U.S.C. 1983

Arbitr ary and Di sparate Treatment of Simi lar ly-Situated Voters

(Bush v. Gore)

78. Plaintiffs incorporate by reference and reallege paragraphs 1 to 77 of this

complaint.

79. The Constitution of the United States protects the right of all qualified

citizens to vote. The right to vote is fundamental and is one of the most important rights in

our democratic society. It is protected by Articles I and II of the Constitution and the First

and Fourteenth Amendments.80. The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution guarantees qualified voters a substantive right to participate equally

with other qualified voters in the electoral process. The Equal Protection Clause applies to

the right to vote in state elections and protects the state electoral franchise. See Harper v

Va. Bd. of Elections, 383 U.S. 663, 665 (1966) ([O]nce the franchise is granted to the

electorate, lines may not be drawn which are inconsistent with the Equal Protection

Clause of the Fourteenth Amendment.). By arbitrarily counting or rejecting ballots from

identically situated voters, Defendants are denying voters, including Plaintiffs Goodwine-

Cesarec, Breckenridge, and Cohen, the right to vote in violation of the Equal Protection

Clause.


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81. The substantive right to participate equally with other voters in the electoral

process is not just protected in the initial allocation of the franchise; equal protection

applies to the manner of its exercise as well. See Bush v. Gore, 531 U.S. 98, 104 (2000). A

state may not arbitrarily impose disparate treatment on similarly situated voters.

82. As set out above, in the conduct of the November 2014 election for the

second congressional district, the State of Arizona has treated similarly-situated voters

differently in determining whether they are permitted to exercise the electoral franchise

Among other things, Pima County and Cochise County employed arbitrary and disparate

deadlines by which a voter could remedy the improper rejection of his or her ballot due to

purported signature mismatch. Likewise, Pima County and Cochise County employed

arbitrary and disparate procedures with regard to voters who inadvertently failed to sign a

ballot affidavit.

83. Arizona arbitrarily and without explanation or justification provides some

opportunity for voters to prove they cast a ballot rejected due to supposed signature

mismatch, but inexplicably provides no opportunity for voters who inadvertently failed to

sign an early ballot (after election day) or a provisional ballot affidavit (at any time) to

correct those errors.

84. In order to comply with the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, all laws that treat citizens differently must

be rationally related to a legitimate state interest. Where a voter is disenfranchised due to

election worker error, and submits evidence prior to the certification of the election that

his or her ballot was properly cast (or he or she was prevented from casting his or her

ballot due to election worker error), the States refusal to correct its own errors is not

rationally related to a legitimate state interest.


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SECOND CLAIM FOR RELIEF

Equal Protection


Undue Burden on the Right to Vote

(Bur dick v. Takushi )


complaint.

86. Under the Equal Protection Clause, a State cannot utilize election practices

that unduly burden the right to vote. The practices outlined above all impose a severe

burdendisenfranchisementon the right to vote of the voters who cast those ballots

Refusing to count these ballots does not serve any legitimate state interest.

87.

Scores of eligible, registered Arizona voters, including Plaintiffs Goodwine-

Cesarec, Breckenridge, and Cohen are suffering direct and irreparable injury from

Defendants improper and arbitrary refusal to count their ballots. Without relief from this

Court, these voters will be deprived of their right to vote in the November election.

88. Based on the foregoing, Defendants, acting under color of state law, have

deprived and will continue to deprive Plaintiffs Goodwine-Cesarec, Breckenridge, and

Cohen and other similarly-situated Arizona voters of equal protection under the law

secured to them by the Fourteenth Amendment to the United States Constitution and

protected by 42 U.S.C. 1983.

THIRD CLAIM FOR RELIEFDue Process



complaint.

90. The Due Process Clause to the Fourteenth Amendment of the United States

Constitution provides that no state shall deprive any person of life, liberty, or property,

without due process of law. This provision guarantees substantive due process and


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prohibits a state from depriving a person of life, liberty, or property without an

appropriately compelling government interest.

91. The liberties protected by the Due Process Clause include the right to vote

and to be free from disparate treatment in the exercise of the electoral franchise, which are

fundamental liberties at the core of our democracy.

92. By subjecting voters to disparate treatment in the exercise of the electoral

franchise without an appropriately compelling government interest, Defendants are

denying Plaintiffs Goodwine-Cesarec, Breckenridge, and Cohen and other similarly-

situated Arizona voters the right to vote in violation of the Due Process Clause and

without any legitimate government interest.

93.

Based on the foregoing, Defendants, acting under color of state law, have

deprived and will continue to deprive Plaintiffs of the substantive due process of law

secured to them by the Fourteenth Amendment to the United States Constitution and

protected by 42 U.S.C. 1983.

FOURTH CLAIM FOR RELIEFAriz. Const. Art. II, 21

94.

Plaintiffs incorporate by reference and reallege paragraphs 1 to 93 of this

complaint.

95. Article 2, Section 21, of the Arizona Constitution provides that all elections

shall be free and equal and guarantees that no power, civil or military, shall at any time

interfere to prevent the free exercise of the right of suffrage. Article 2, section 21 is

violated when votes are not properly counted.

96. Where, as alleged herein, voters have taken every step required of them and

the same steps as other voters whose ballots were counted, and have eliminated any

plausible concern with the counting of their ballots, a refusal to count those voters ballots

constitutes an interference with the free exercise of the right of suffrage and violates the

constitutional guarantee of elections that are free and equal. Because of the errors set


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out above, a substantial number of votes will not be properly counted, in violation of the

Arizona Constitution.

FIFTH CLAIM FOR RELIEFHelp America Vote Act52 U.S.C. 21082(a)(4)


complaint.

98. Under the Help America Vote Act (HAVA), [i]f the appropriate State or

local election official to whom [a] [provisional] ballot or voter information is

transmitted . . . determines that the individual is eligible under State law to vote, the

individuals provisional ballot shall be counted as a vote in that election in accordance

with State law. 52 U.S.C. 21082(a)(4).

99. Because all of the provisional ballots described herein were, in fact, cast by

voters who are eligible to vote under state law, the plain language of 52 U.S.C.

21082(a)(4) requires that these votes shall be counted.

SIXTH CLAIM FOR RELIEF

Violations of Arizona Election LawA.R.S. 16-579, 16-583, 16-584, Election Procedures Manual (2014)


complaint.

101. Arizona law provides that [a]ny qualified elector who is listed as having

applied for an early ballot but who states that the elector has not voted and will not vote an

early ballot for this election or surrenders the early ballot to the precinct inspector on

election day, shall be allowed to vote a provisional ballot. A.R.S. 16-579(B). [I]f there

is no indication that the voter voted an early ballot, the provisional ballot envelop shall be

opened and the ballot shall be counted.Id. 16-584(D).

102. Arizona law requires election officials to accept early and provisional

ballots that are cast by eligible, registered voters who sign both their registration form and


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the ballot affidavit. If election officials make the preliminary determination that the

signature on a voters registration form does not match the signature on the voters

ballot affidavit, election officials must afford the voter the opportunity to explain that he

or she did vote the ballot and . . . why the signatures do not match. Manual at 167.

103. Election officials also rejected a number of ballots cast by early and/or

provisional voters because of their erroneous determination that the voters signature on

the ballot affidavit did not match the signature on the voters registration form

Although Arizona law contains no pre-certification deadline by which voters must provide

evidence that their signatures do, in fact, match, Pima County and Cochise County

election officials have refused to count the ballots of voters who have informed election

officials that they signed both the ballot affidavit and the registration form and/or

provided sworn testimony to that effect to the Board of Supervisors.

104. As a matter of state law, if a voter informs an election official at a polling

place that he or she lives in a new residence, the election official shall direct the

registrant to the polling place for the new address. A.R.S. 16-583(A) (emphasis added)

This is a mandatory obligation.

105.

In numerous cases on Election Day, election officials in Pima County and

Cochise County failed to comply with their mandatory statutory duty to direct certain

voters to the proper polling place. Instead of complying with their mandatory statutory

duty, such election officials instead mistakenly instructed such voters to cast a provisiona

ballot, which was then rejected. Such voters were disenfranchised due to election official

error.

DECLARATORY AND INJUNCTIVE RELIEF

28 U.S.C. 2201 and 2202, Fed. R. Civ. P. 57 and 65


complaint.

107. This case presents an actual controversy because Defendants present and

ongoing refusal to count the validly cast ballots of Plaintiffs and similarly-situated voters


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subjects them to serious and immediate harms, warranting the issuance of a declaratory

judgment.

108. Plaintiffs seek preliminary and/or permanent injunctive relief to protect their

statutory and constitutional rights and avoid the injuries described above. A favorable

decision enjoining Defendants would redress and prevent the irreparable injuries to

Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law or in

equity.

109. The State will incur little to no burden in counting the votes of eligible

registered voters who have been disenfranchised through no fault of their own. The results

of the 2014 election for the second congressional district have not yet been certified. Any

minor administrative burden imposed on the State in processing and including in the

canvass results improperly-rejected ballots pales in comparison to the fundamental

constitutional injury of denial of the right to vote that Plaintiffs will suffer in the absence

of the relief requested. The balance of hardships thus tips strongly in favor of Plaintiffs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

A. Declaring that the votes reflected on the ballots submitted by the voters

identified in the declarations attached to Plaintiffs motion for temporary restraining order

and preliminary injunction, filed this same day, (the contested ballots) must be counted

and included in Defendants certification of the results of the 2014 General Election, with

respect to all races for which the voter was eligible to vote, and any certification of the

need for a recount in the election for United States House of Representatives in Arizonas

second congressional district.

B. Preliminarily and permanently enjoining Defendants and all those acting in

concert with them or under their direction from certifying the results of the 2014 General

Election or the need for a recount in the election for United States House of

Representatives in Arizonas second congressional district until the contested ballots have

been counted and are reflected in all other official totals of the votes for the 2014 General


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83694-0002/LEGAL124229467.6

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Election with respect to all races for which voters casting contested ballots are eligible to

vote; and ordering Defendants and all those acting in concert with them or under their

direction to count the contested ballots and to include the votes reflected on those ballots

in their certification of the results of the 2014 General Election, any certification of the

need for a recount in the election for United States House of Representatives in Arizonas

second congressional district, and all other official totals of the votes for the 2014 General

Election.

C. Preliminarily and permanently enjoining enforcement by Defendants of

Arizona Revised Statute 16-584 and any other sources of state law that requires election

officials to reject provisional ballots cast by eligible, registered voters in the wrong

precinct with respect to all races in which the voter is entitled to cast a vote.

D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys fees

pursuant to, inter alia, 42 U.S.C. 1988 and other applicable laws; and

E. Granting such other and further relief as the Court deems just and proper.

November 24, 2014 PERKINS COIELLP

By: s/ Daniel C. BarrDaniel C. Barr2901 North Central Avenue, Suite 2000Phoenix, Arizona 85012-2788

Kevin J. HamiltonPro Hac Vice Application To Be Filed1201 Third Avenue, Suite 4900Seattle, WA 98101-3099

Attorneys for Plaintiffs Ron Barber forCongress, Lea Goodwine-Cesarec, LauraAlessandra Breckenridge, and Josh AdamCohen


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CERTIFICATE OF SERVICE

I hereby certify that on November 24, 2014, I electronically transmitted the

attached documents to the Clerks Office using the CM/ECF System for filing.

I hereby certify that, I will serve the attached document once a Judge is

assigned to the matter, United States District Court of Arizona, 405 West Congress Street

Tucson, Arizona 85701.

s/ S. Neilson


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83694-0002/LEGAL124271638.2

Daniel C. Barr (Bar No. 010149)PERKINS COIE LLP2901 North Central Avenue, Suite 2000Phoenix, Arizona 85012-2788Telephone: 602.351.8000Facsimile: 602.648.7000Email: [email protected]

Kevin J. Hamilton (WSBA No. 15648)Pro Hac Vice Application To Be FiledPERKINS COIE LLP1201 Third Avenue, Suite 4900Seattle, WA 98101-3099Telephone: 206.359.8000Facsimile: 206.359.9000Email: [email protected]

Attorneys for Plaintiffs Ron Barber forCongress, Lea Goodwine-Cesarec; Laura

Alessandra Breckenridge; and Josh AdamCohen.

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Ron Barber for Congress; Lea Goodwine-

Cesarec; Laura Alessandra Breckenridge; Josh

Adam Cohen,

Plaintiffs,

v.

Ken Bennett, in his official capacity as

Secretary of State of the State of Arizona; the

Pima County Board of Supervisors, a body

politic; Ally Miller, in her official capacity as a

member of the Pima County Board of

Supervisors; Ramn Valadez, in his official

capacity as a member of the Pima CountyBoard of Supervisors; Sharon Bronson, in her

official capacity as a member of the Pima

County Board of Supervisors; Ray Carroll, in


County Board of Supervisors; Richard Elas, in


County Board of Supervisors; the Cochise

No.

APPLICATION FOR

TEMPORARY RESTRAININGORDER, MOTION FORPRELIMINARY INJUNCTION,AND MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT

(ORAL ARGUMENTREQUESTED)

(EXPEDITED RULINGREQUESTED)


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County Board of Supervisors, a body politic;

Patrick Call, in his official capacity as a

member of the Cochise County Board of

Supervisors; Ann English, in her official

capacity as a member of the Cochise County

Board of Supervisors; and Richard Searle, inhis official capacity as a member of the

Cochise County Board of Supervisors,

Defendants.


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TABLE OF CONTENTS

Page

-i-

APPLICATION AND MOTION ........................................................................................ 1

MEMORANDUM ............................................................................................................... 2

FACTS ................................................................................................................................. 2

ARGUMENT....................................................................................................................... 5

A. Likelihood of Success on the Merits ............................................................. 5

1. Voters Who Moved Within Pima County And NonethelessHad Their Provisional Ballot Rejected .............................................. 5

2. Voters Who Signed Both Their Registration Form and Their

Ballot Affidavit And Nonetheless Had Their Ballot RejectedDue to a Purported Signature Mismatch......................................... 6

3. Unsigned Early Ballots....................................................................... 9

4. Unsigned Provisional Ballots ........................................................... 10

5. Failure to Direct Voters Who Had Moved To the ProperPrecinct ............................................................................................. 11

6. Misleading or Erroneous Statements by Election OfficialsRegarding Voting in Proper Precinct ............................................... 12

7. Voters Who Were Not Told They Were in the Wrong Precinct ...... 13

B. Irreparable Harm ......................................................................................... 14

C. Balance of the Harms .................................................................................. 16

D. Public Interest .............................................................................................. 17

CONCLUSION ................................................................................................................. 17


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TABLE OF AUTHORITIES

Page

-ii-

CASES

Anderson v. Celebrezze,460 U.S. 780 (1983) ....................................................................................................... 9

Awad v. Ziriax,

670 F.3d 1111 (10th Cir. 2012) ................................................................................... 17

Beaty v. Brewer,

649 F.3d 1071 (9th Cir. 2011) ....................................................................................... 5

Burdick v. Takushi,

504 U.S. 428 (1992) ................................................................................................. 9, 13

Bush v. Gore,

531 U.S. 98 (2000) ............................................................................................... 7, 8, 10

Chavez v. Brewer,

222 Ariz. 309 (App. 2009) ........................................................................................... 14

Chenoweth v. Earhart,

127 P. 748 (Ariz. 1912) ................................................................................................ 16

Common Cause v. Bolger,

512 F. Supp. 26 (D.D.C. 1980) .................................................................................... 14

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) ....................................................................................................... 9

Elrod v. Burns,

427 U.S. 347 (1976) ..................................................................................................... 14

Gonzalez v. Ariz.,

677 F.3d 383 (9th Cir. 2012) ......................................................................................... 7

Harless v. Lockwood,85 Ariz. 97, 332 P.2d 887 (Ariz. 1958) ....................................................................... 15

Harvey v. Brewer,

605 F.3d 1067 (9th Cir. 2010) ..................................................................................... 14

League of Women Voters of N. Carolina v. North Carolina,

769 F.3d 224 (4th Cir.)................................................................................................. 14


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McCutcheon v. Fed. Election Commn,

134 S. Ct. 1434 (2014) ................................................................................................. 17

Miller v. Moore,

169 F.3d 1119 (8th Cir. 1999) ..................................................................................... 15

Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd.,

354 F.3d 249 (4th Cir. 2003) ....................................................................................... 17

Northeast Ohio Coalition for Homeless v. Husted,

696 F.3d 580 (6th Cir. 2012) ....................................................................................... 12

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012) ................................................................................. 14, 17

Pashby v. Delia,

709 F.3d 307 (4th Cir. 2013) ....................................................................................... 17

Purcell v. Gonzalez,

549 U.S. 1 (2006) ......................................................................................................... 17

Raetzel v. Parks/Bellemont Absentee Election Bd.,

762 F. Supp. 1354 (D. Ariz. 1990) ................................................................................ 9

Reynolds v. Sims,377 U.S. 533 (1964) ..................................................................................................... 17

Sandusky County Democratic Party v. Blackwell,

387 F.3d 565 (6th Cir. 2004) ................................................................................. 11, 12

Taylor v. Louisiana,

419 U.S. 522 (1975) ..................................................................................................... 17

Wesberry v. Sanders,

376 U.S. 1 (1964) ......................................................................................................... 17

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ........................................................................................................... 5

CONSTITUTIONS

Arizona Constitution, article II, 21 ....................................................................... 7, 10, 13


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STATUTES

52 U.S.C. 21082(a)(4) .............................................................................................. 11, 13

A.R.S. 16-135 ............................................................................................................. 6, 12

A.R.S. 16-642, 16-646 ................................................................................................ 4, 5

A.R.S. 16-648, 16-662 .................................................................................................... 5

A.R.S. 16-672(A)...................................................................................................... 15, 16

OTHER AUTHORITIES

27A Am. Jur. 2d Equity 29 ....................................................................................... 15, 16

Ariz. Op. Atty. Gen. No. I13-011 (Oct. 7, 2013) .............................................................. 14

Blacks Law Dictionary(9th ed. 2009) ............................................................................. 16

Secretary of States Elections Procedures Manual (2014) ................................................. 7


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-1-83694-0002/LEGAL124271638.2

APPLICATION AND MOTION

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Ron Barber for Congress

(the Barber Campaign) and Lea Goodwine-Cesarec, Laura Alessandra Breckenridge,

and Josh Adam Cohen (the Individual Plaintiffs) apply for an order temporarily

restraining Defendant Secretary of State of the State of Arizona Ken Bennett (the

Secretary of State) and/or the members, officers, agents, employees, and/or attorneys of

the Secretary of State and/or his office, and/or those persons in active concert or

participation with the Secretary of State and/or his office, from certifying the results of the

2014 General Election or the need for a recount in the 2014 election for the United States

House of Representatives in Arizonas second congressional district (second district)

Plaintiffs also move for a preliminary injunction ordering that:

(i) Defendants and/or their members, officers, agents, employees, and/or attorneys

and/or those persons in active concert or participation with Defendants, must count the

votes reflected on the ballots (the contested ballots) submitted by the voters who signed

the declarations contained in Exhibit E to the Declaration of Kevin J. Hamilton (the

Hamilton Decl.) for all elections for which the voters who cast those ballots were

eligible to vote, and include those votes in the Secretary of States certification of the

results of the 2014 General Election, any certification of the need for a recount in the 2014

election for the United States House of Representatives in Arizonas second district, and

all other official totals of the votes for the 2014 General Election; and

(ii) The Secretary of State and/or the members, officers, agents, employees, and/or

attorneys of the Secretary of States office, and/or those persons in active concert or

participation with the Secretary of State and/or his office, are enjoined from certifying the

results of the 2014 General Election or the need for a recount in the election for the

second district until the contested ballots have been counted and are reflected in all

official totals of the votes for the 2014 General Election. Plaintiffs further request that the

temporary restraining order remain in effect until such time as the Court rules on

Plaintiffs Motion for Preliminary Injunction and that the preliminary injunction remain in


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83694-0002/LEGAL124271638.2

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effect pending final resolution of this action or further order of this Court.

This application and motion is based upon the following memorandum of points

and authorities, the attached declarations, and such further evidence and arguments as may

be presented. Initial notice of this application and motion has been provided to Defendants

as detailed in the Hamilton Declaration and further notice will be provided promptly

Plaintiffs also request that they be exempted from the Rule 65(c) bond requirement.

MEMORANDUM

This case concerns the improper rejection of ballots cast by 133 Arizonans who

were eligible and registered to vote and who cast ballots in the November 2014 General

Election for Arizonas second district. While the denial of a fundamental right to so many

voters would be troubling under any circumstances, this yearwhen the election for the

U.S. House of Representatives for Arizonas second district hangs in the balanceit gives

rise to the real possibility that the candidate for whom fewer voters were cast will be

seated in the House of Representatives.

Without the requested relief, the contested ballots will remain uncounted. The Pima

and Cochise County Boards of Supervisors have refused to count these ballots. The

Secretary of State, who is scheduled to certify the election results or the need for a recall

on December 1, has not provided assurances that he treat these ballots any differently

Immediate relief is thus needed in order to prevent the disenfranchisement of the

Individual Plaintiffs and more than 100 other Arizonans and the real possibility that the

wrong candidate will be declared the winner of the election in Arizonas second district.

FACTS

The initial returns indicate that Martha McSally leads the incumbent, Congressman

Ron Barber, by a razor-thin margin of 161 votesless than one-tenth of one percent of

the votes castin the election for Arizonas second district. [Hamilton Decl. 6] A

handful of votes very well could determine the results of the election.

Since the election took place, the Barber Campaign has received reports from many

voters in Arizonas second district, including the Individual Plaintiffs, who cast ballots in


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provide voters with information that poll workers were required to provide; where voters

precisely followed inaccurate directions they received from election officials; or where

poll workers easily could have, but did not, provide voters with information (e.g., the

necessity of signing a provisional ballot, or a warning that an out-of-precinct provisional

ballot would not be counted) that would have permitted these voters to cast ballots that

would have been counted. In addition, voters have effectively been disenfranchised for the

2014 General Election pursuant to state laws or rules that violate the United States

Constitution, the Help America Vote Act (HAVA), and/or the Arizona Constitution.

More specifically, the declarations demonstrate that ballots have been rejected

where (1) voters moved within Pima County and voted provisional ballots (three contested

ballots); (2) a county official wrongly believed that the voters signature on the affidavit

on the early ballot envelope did not match the signature on the voters registration form

(27 contested ballots); (3) early ballots were not signed (eight contested ballots);

(4) provisional ballots were not signed (eight contested ballots); (5) election officials

failed to direct voters who moved to the proper precinct (31 ballots); (6) election officials

made misleading or erroneous statements regarding voting in the proper precinct (11

ballots); (7) voters were not told they were in the wrong precinct (45 ballots).

The Barber Campaign attempted to resolve many of these issues with the

responsible county boards of supervisors. It was rebuffed. On November 18, 2014

counsel for the Barber Campaign delivered to the Pima County Board of Supervisors

(Pima Board) a letter and over 130 declarations from registered voters whose ballots

were not counted. [Hamilton Decl. 2] Although the deadline for the Pima Board to

complete its canvass was not until November 24 ( A.R.S. 16-642, 16-646) it refused to

count the declarants ballots or even to make any pre-certification inquiry into whether it

had, in fact, improperly disenfranchised more than 130 of its citizens. [Id. 3] Instead, it

certified the election results without counting any of those ballots. [Id.]

Cochise County also declined to take corrective action. On November 19, 2014,

counsel for the Barber Campaign sent a letter to the Cochise County Board of Supervisors


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(the Cochise Board) asking that 20 rejected ballots from Cochise County be counted

and that the Cochise Board delay certification of the 2014 General Election results until

voters who cast unsigned early ballots had an opportunity to cure those ballots. [Id. 4 &

Exh. B] The next day, the Cochise Board certified the election results without including

the votes from any of the rejected ballots identified by the Barber Campaign. [Id. 5]

On November 21, the Barber Campaign sent a letter to the Secretary of State that

enclosed sworn declarations from voters documenting similar errors and requesting that

the Secretary take steps to review these declarations and either direct the Pima and

Cochise County Boards of Supervisors to investigate, count these ballots, and amend their

certification, or, alternatively, to conduct that investigation directly as part of the state

canvassing and certification process. As of this date, the Secretary of State has not

responded to that request. [Id. 8] The Secretary of State is scheduled to certify the

election results or the need for a recount on December 1, 2014. A.R.S. 16-648, 16-662.

ARGUMENT

The Court should issue the relief requested in this case. A plaintiff seeking a

preliminary injunction must establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The standard for issuing a temporary

restraining order is essentially the same as that for issuing a preliminary injunction.Beaty

v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011). These factors strongly favor Plaintiffs.

A. Likelihood of Success on the Merits

Plaintiffs have a high likelihood of success on the merits. Ballots cast by eligible

registered Arizonans were rejected in violation of federal and state law.

1. Voters Who Moved Within Pima County And Nonetheless HadTheir Provisional Ballot Rejected

Election officials erroneously rejected the provisional ballots of certain voters who

had moved within Pima County but had not updated their residential address in their voter


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registration records prior to Election Day. Arizona law is clear that [a]n elector who

moves from the address at which he is registered to another address within the same

county and who fails to notify the county recorder of the change of address before the date

of an election shall be permitted to correct the voter registration records at the appropriate

polling place for the voters new address, A.R.S. 16-135(B); that after presenting

identification and affirming the new residence address in writing, the voter shall be

permitted to vote a provisional ballot, id.; and that if the voters signature does not

appear on the signature roster for that election in the precinct in which the voter was listed

(i.e., where the voter previously resided) and there is no record of the voter having voted

early for that election, the provisional ballot shall be counted, id. 16-135(D).

For example, Suzanne Pasch moved within 30 days of Election Day, from one

address in Pima County to another. [Hamilton Decl., Ex. E, Tab A (Pasch Decl.)] She

went to the polling location for her new address. [Id.] She was required to vote a

provisional ballot, and it was not counted. [Id.] Under state law, her voter registration

records should have been updated and her ballot should have counted. A.R.S. 16-135.

2. Voters Who Signed Both Their Registration Form and TheirBallot Affidavit And Nonetheless Had Their Ballot Rejected Due

to a Purported Signature Mismatch

Many early ballots, including the ballot of Plaintiff Breckenridge, were improperly

rejected based on a determination that the voters signature on the affidavit on the early

ballot envelope did not match the signature on the voters registration form. For example

Roma Page, who was born in 1919 and h

Documents

Ron Barber Election Lawsuit